State: ICJ fence ruling 'biased'

Dan Izenberg 
February 23, 2005
The Jerusalem Post 
http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1109128769325 http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1109128769325 
The state on Wednesday charged that the International Court of Justice based its advisory opinion declaring the separation fence illegal on incomplete, unspecific, inaccurate and unbalanced facts submitted to it by the UN. 
The charges were included in a 177-page statement prepared by Osnat Mandel, head of the High Court Section of the State Attorney's Office, and Avi Licht, a senior deputy to the state attorney, in response to a High Court decision instructing the state to reply to the ICJ advisory opinion of July 9. 
The response was included in the state's reply to separate petitions by Palestinian residents of Budrus, a village located on the Green Line northeast of Lod, and Shukba, a few kilometers further east. The petitioners charged that the fence was being built on their land and causing them undue hardship. 
The state's document is divided into three sections. The first explains the reasons why the government decided to build the separation fence. The second deals with the Budrus and Shukba petitions and maintains that the route of the fence in those sections takes into account the security needs of the Israeli population and the quality of life of the Palestinians in a fair and balanced way. 
The third and largest section of the documents contains the state's response to the ICJ advisory opinion. 
The state first pointed out that the ICJ opinion is not a ruling and is not binding. It was given in response to a request by the UN for an advisory opinion on a legal question in accordance with Article 96 of the UN Charter. 
It emphasized the anti-Israel bias reflected in the UN General Assembly debate leading up to its request to the ICJ for an opinion on the fence. Even the question to the ICJ was biased, Mandel and Licht said. It referred to the separation fence as a wall, even though only 8.8 kilometers out of the 180 km. that had been built up to then were a concrete wall. The rest of the barrier contains barbed wire fencing and other devices that are easy to remove. 
In its written submission to the ICJ, Israel primarily argued that the court did not have jurisdiction to deal with the Israeli-Palestinian conflict. However, it also provided information on the reasons for building the wall and the damage done by Palestinian terrorism. 
Mandel and Licht then analyzed and rejected the ICJ analysis of the principles of international law that apply to the construction of the fence, particularly as included in the 1907 Hague Convention and the 1949 Geneva Convention. For example, the court expressed doubt that the destruction of homes by the IDF could be justified by military necessity. 
The court also expressed doubt that the fence was necessary for Israel to obtain its security objectives and indicated that the real reason for building it was political, to annex the settlements, which it considered illegal. It rejected Israel's argument that the fence was a temporary measure. 
The state argued that the ICJ decision rested primarily on the information made available to it by the UN. It charged that although the judges had received 1,000 pages of information on the fence, they had relied on a few pages written by UN Secretary-General Kofi Annan and documents submitted by two UN Commission on Human Rights rapporteurs, John Dugard and Jean Ziegler. It charged that Annan's report was unbalanced and that those of the rapporteurs were written in a clearly brutal and one-sided way. It also charged that the reports contained little detailed information. 
The facts presented to the court clearly influenced the judges' decisions, continued Mandel and Licht. In the factual sections of the advisory opinion, the judges did not address Israel's arguments, they wrote. There is no detailed discussion of the terror assault or any serious consideration of Israel's military needs except for one sentence recognizing Israel's right to protect itself against terrorism. But even this sentence is not part of the central legal analysis and sounds more like lip service. 
Mandel and Licht wrote that the imbalance was particularly noteworthy in the judges' description of the fence surrounding Kalkilya. The court did not consider the strategic location of the town, situated at Israel's narrow waist, or the fact that many terrorists had infiltrated from there. 
They also charged that the facts included in the opinion were vague and often incorrect. For example, the judges wrote that the army had seized 100,000 dunams (25,000 acres) of Palestinian farmland for the fence. Mandel and Licht maintained that the actual figures were 8,300 dunams, of which only 7,000 were privately owned. They added that the route of the fence had changed drastically since the ICJ handed down its opinion. The judges wrote that the fence would place 16.6 percent of West Bank land on the Israeli side of the fence. The route approved by the government on Sunday includes 7 percent on the Israeli side. 
In its conclusion, the state wrote that lacking a substantial and detailed consideration of Israel's military needs and the terrorist assault that the fence was meant to thwart, and lacking detailed information to assess the balance between military necessity and the harm caused Palestinians in the various sections of the fence, the ICJ could not reach well-founded legal conclusions.